Gurasz v Gurasz

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date09 Jul 1969
Judgment citation (vLex)[1969] EWCA Civ J0709-1

[1969] EWCA Civ J0709-1

In The Supreme Court of Judicature

Court of Appeal

Appeal by Mr. Gurasz from Order of Southampton County Court on 30th May, 1969.


The Master of The Rolls (Lord Denning)

Lord Justice Edmund Davies and

Lord Justice Fenton Atkinson

In the Matter of No. 8 Spear Road, Portswood in the City of Southampton


In the Matter of an application under the Matrimonial Homes Act 1967

Lukasz Gurasz
Maria Louisa Gurasz

Miss M. GILLESPIE (instructed by Messrs. Alec Woolf & Turk, Agents for Messrs. Waller & Chesshire, Southampton) appeared on behalf of the husband appellant.

Mr. R. BAIN (instructed by Messrs. Woodford & Ackroyd) appeared on behalf of the respondent wife.


The parties married on 28th June, 1952. He was Polish. She Italian. They have three children of their own, aged 12, 10 and 9: and a fourth child who is treated as one of the family, aged 5.


On 8th May 1964, they bought a house, No. 8 Spear Road, Southampton. It is owned by them jointly and is subject to a mortgage.


On 26th October 1967, the wife left the house and took the children with her. If her story is correct, his conduct was altogether deplorable: and she was well justified in refusing to live with him or let the children be with him.


The wife, when she left, could only find two rooms for herself and the children. The accommodation is utterly unsuitable for her. The welfare officer says in an understatement: "………it is very sub-standard". They have a living room in which it is impossible to move if they are all in, and they all sleep in the second room. They can only cook on a gas ring which is on a stand next to the settee and behind the door. There is a very real danger of one or more of the children being scalded.


Meanwhile, after the wife left, the husband had taken a Polish man into the house to live with him: and they had the whole house to themselves.


Those facts came to light when the County Court Judge had an application before him under the Guardianship of Infants Act. He got the Welfare Officer to make a report: and it was, no doubt, a great help to him in assessing the situation. He thought it was urgent to find a solution to the housing problem. After making inquiries, it appeared that there was only one way open. It was for the husband and his friend to leave the house, and let the wife and children go back there. After all, it was her property as well as his: and in their dire plight, it was much better for her to be in the house rather than him.


Accordingly, the wife, by her Counsel, made application to the Judge for an Order: and the Judge gave it. On 30th May 1969, he ordered the husband and his friend to vacate the matrimonial home in seven days, and that the wife do re-enter with the children and live there unmolested. The husband did not obey that Order. He did not go out. So on Thursdays 12th June 1969, there was an application to commit the husband to prison for failing to comply with the Order. The Judge committed the husband to prison. So he went to prison. His Polish friend left the house. The wife and children returned. On the next day, Tuesday, 13th June, the husband wrote to the Court, saying: "In order to obtain my release and purge my contempt I wish to state that all I want to do is to collect my property, clothes and tools from No. 8 Spear Road, Southampton. I shall endeavour to find other accommodation. I will leave my wife and children alone and in the meantime I will consult my solicitor………". That letter was placed before us, and we allowed him to be released from prison on his undertaking that he only went back to the house to collect his things. I presume that has been done. So the deplorable situation has been remedied. The wife and children are back in the house, as they ought to be: and the husband is living elsewhere.


But we have still to deal with the husband's appeal. Miss Gillespie, who appeared as Counsel on his behalf, says that the County Court Judge had no jurisdiction to order the husband to vacate the house, or to allow the wife back. She says that several grounds of jurisdiction were canvassed, but that eventually the Judge held that he was given jurisdiction by Section 1(2) of the Matrimonial Homes Act, 1967. She says that the Judge was wrong. Mr. Bain for the wife says that the Judge did have jurisdiction under that Act: or, alternatively, that he had jurisdiction at common law.


I propose first to deal with the position at common law: because it is an essential preliminary to understanding the importof the Statute.


Some features of family life are elemental in our society. One is that it is the husband's duty to provide his wife with a roof over her head: and the children too. So long as the wife behaves herself, she is entitled to remain in the matrimonial home. The husband is not at liberty to turn her out of it, neither by virtue of his command, nor by force of his conduct. If he should seek to get rid of her, the Court will restrain him. If he should succeed in making her go, the Court will restore her. In an extreme case, if his conduct is so outrageous as to make it impossible for them to live together, the Court will order him to go out and leave her there.


This right is a personal right which belongs to her as a wife. It is not a proprietary right. It is not available against third persons. It is only available against the husband. No matter whether the house is in the wife's name, or in the husband's name, or in the names of both jointly, nevertheless she has this personal right which the Court will protect. So long as she has done nothing to forfeit that right, the Court will enforce it by making an injunction to restrain the husband from interfering with the exercise of it. Such was done in Shipman v. Shipman, (1924 2 Ch. 140) where the house was in the wife's name: and in Silverstone v. Silverstone, (1953 P. 174) when the house was in the husband's name. Those cases were clearly in Lord Hodson's mind in National Provincial Bank v. Ainsworth, (1965 A.C. 1260), when he said: "So long as she has not forfeited her right, the Courts have often intervened to protect the wife's right to live in the house which she and her husband have occupied together". If such be the law when the house is in the husband's name alone, or in the wife's name alone, it must also be the law when the house is in joint names. The wife who is joint owner must at least be in as good a position as a wife who is not owner at all.


Before the case of National Provincial Bank v. Ainsworth, this Court had endeavoured to do more for the wife. In cases where the house was owned by the husband, this Court tried togive a deserted wife an "equity" which would come to her aid in hard cases: such as when the husband sold the house to his new mistress, who took with knowledge. The House of Lords in Ainsworth's case denied the existence of any such "equity". deserted wife has no protection against third persons who buy from the husband. But the House recognised the personal right which she has against the husband himself.


Soon after the House gave their decision, the Legislature intervened to restore in great part the decisions in this Court: and to do more. The Act gave either spouse (when the house was owned by the other) a right to occupy which, on being registered, would operate as a charge on the property and be available against third persons. The Act did not take away or diminish the wife's personal right to occupy the matrimonial home. That was left intact. It is still available to her as against her husband and the Courts will protect her in her occupation, just as they did before the Act. It is available, irrespective of the title to the house, no matter whether it is in her name, or her husband's name, or in joint names. The only thing is that, if it is in her own name, or in joint names, she is in so much the stronger position: because she can add to her personal right against her husband, a proprietary right which is available against third persons.


What then is the position in this case? In the first place, the wife has a proprietary right in the house. She is joint owner with her husband. By virtue of her joint ownership, she has a right to occupy the house by herself and her children. The Courts can certainly enforce that right by allowing her to re-enter the house and by preventing the husband from interfering with her exercise of that right. It is true, of course, that the husband is also a joint owner, and by virtue thereof, the husband hasa right to occupy it. But that is a right which the Courts, for the protection of the wife, can restrict: just as it can restrict his right if he were sole owner. Such a power to restrict; arises out of her personal right, as a wife, to occupy the house. If his conduct is so outrageous as to make it impossible for them to live...

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